Originally published October 2011
The difference between precautionary attachment and executive attachment
Precautionary attachment is a form of interim protection in cases of urgency. It involves funds being held by the judiciary to prevent the party under attachment from disposing of such funds to the detriment of the attachment applicant. Precautionary attachment differs from executive attachment in that that precautionary attachment can be made without taking the preliminary steps of execution that are required by law in executive attachments. Executive attachment must be preceded by an execution bond requesting the Plaintiff to make payment. Under executive attachment, the creditor must have an executive bond covering the sale of the attached property. Whereas, precautionary attachment can be made where the attachment applicant does not have an executive bond because it is simply a precautionary measure aimed at preventing the debtor from smugglingmoney or disposing of it in a way that harms the rights of the attachment applicant
Precautionary attachment under the UAE Civil Procedures Law Article 252 of the UAE Civil Procedures Law provides that acreditor may request the court to impose precautionary attachment on the movable property of the other party in the event that the creditor fears he may lose his rights due to the debtor not having a permanent residence in the UAE, or where the creditor fears that the debtor may abscond, smuggle or conceal his money, or where security over the debt is at risk. These elements are deemed to be part of the general rules of attachment, however, the Civil Procedures Law also provides for some special cases. One special case would be where the creditor holds an official or normal bond for a due and unconditional debt. In this case, the debt will be payable when it is due,, but the creditor is not allowed to request the enforcement of certain of their rights until the debt falls due. . In court, if the judge concludes that the claim is serious, the creditor may request a court hearing, normally before a summary proceedings judge, to impose precautionary attachment on the debtor's movables.
In practice, summary proceedings judges may not pass an attachment order unless it is concluded prima facie based on the documentation submitted with the attachment request that the Plaintiff's claim against the Defendant is serious. The execution judge, upon receipt of an attachment request, holds the power of discretion and is entitled to impose or reject the attachment weighing the creditor's rights against the debtor's circumstances and reputation.
Precautionary attachment is one of the best ways for a creditor to protect their rights and money within the UAE. It is also one way of putting pressure on the debtor to make settlement.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
